Ku. Arti vs The Education Officer (Secondary
2010 Latest Caselaw 38 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                
                                  NAGPUR BENCH, NAGPUR.




                                                                        
                           WRIT PETITION NO. 1792 OF 2010.


     Ku. Arti d/o Vithalrao Warkhede,




                                                                       
     aged about 34 years, Occupation:
     Service, R/o C/o M.R. Kolhe, Mill
     Road, Pulgaon, Tahsil Deoli,
     District Wardha.                  ........                                                PETITIONER.




                                                   
                 ....Versus....
                        
     1] The Education Officer (Secondary),
                       
        Zilla Parishad, Wardha, Tahsil and
        District Wardha,

     2] The Deputy Director of Education,
      


        Nagpur Division, Nagpur,
   



     3] Mai Saheb Social and Educational
        Sanstha, Sarul, Post Waigaon (Nipani),





        Tahsil Deoli, District Wardha, having
        Registration No. Mah. 51/08 (W),
        through its Secretary,





     4] Dr. B.R. Ambedkar Shikshan Sanstha,
        Hinganghat, District Wardha, having
        its Registration No. F/115, P.T.R. No.
        357/69 (Mah.) through its Secretary,

     5] Sayja Mohan Vidyalaya, Sarul, Post
        Waigaon (Nipani), Tahsil Deoli,
        District Wardha, through its
        Headmaster.                                                            ......        RESPONDENTS



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     Mr. A.M. Gorday, Senior Advocate for petitioner,




                                                                                                 
     Ms. T. Khan, Assistant Government Pleader for respondent nos. 1 & 
     2.




                                                                         
     Mr. Ahirrao, Advocate for respondent nos. 3 & 5.


                    CORAM :   S.A. BOBDE & MRS. MRIDULA BHATKAR, JJ.

DATED : OCTOBER 15, 2010.

ORAL JUDGMENT (PER S.A. BOBDE, J.)

1] Rule returnable forthwith. Heard the learned Counsel for

the parties by consent.

2] The petitioner has approached this Court against the order

dated 11.4.2008 passed by the respondent No.1 Education Officer

rejecting the approval to her services as a Shikshan Sevak in the

respondent no.5 school. The main contention in the petition is that

the reason given for rejecting approval, namely, that the petitioner

who is a reserved category candidate could not have been appointed

in the post which was earlier occupied by an open category candidate

is not correct.

3] However, consequent upon the rejection of the approval,

the petitioner's services have been terminated with effect from

9.4.2008 and the petitioner challenged the termination initially before

the Grievance Committee and thereafter, after an amendment to

Maharashtra Employees of Private Schools (Conditions of Service)

Regulation Act, 1977, the appeal is now pending before the Schools

Tribunal. The question, therefore, that arises is whether the

petitioner can challenge the rejection of her approval in the appeal

which she has filed against her termination.

4] Mr. A.M. Gorday, learned Senior Advocate for petitioner,

pointed out that Division Bench of this Court in the case of Anna

Manikrao Pethe .vs. Presiding Officer, School Tribunal, Amravati

and Aurangabad Division, Amravati and others reported in

1997(3) Mh. L.J. 697, has laid down that in an appeal against

termination, it was necessary for the Tribunal to frame and decide

three preliminary issues, namely,

i. whether the school was a recognised school as defined under

the MEPS Act,

ii. whether the appointment of the concerned teacher was made

as per Section 5 of the MEPS Act and Rules and

iii. whether such an appointment was approved by the Education

Officer in pursuance of the provisions of the Act and Rules

framed thereunder, including Government Resolutions issued

from time to time.

The Division Bench further observed that these points be decided as

preliminary points and in case the Tribunal answers any of the

preliminary issues in the negative, the appeal must fail.

5] The learned Counsel, however, pointed out that the

position laid down by the Division Bench in Anna Manikrao Pethe's

case (supra) has undergone a change due to the decision of a Full

Bench in the case of St. Ulai High School and another .vs.

Devendraprasad Jagannath Singh and another reported in

2007(1) Mh.L.J. 597 where the Full Bench has expressly held that

the decision in Anna Manikrao Pethe's case to the extent it holds

that an appeal is not maintainable before the Tribunal at the behest of

an employee whose appointment has not been approved stands

overruled, along with another decision in the case of Shailaja

Ashokrao Walse .vs. State of Maharashtra & others reported in

1999 Mh.L.J. 291. According to the learned Counsel, there is no

doubt now that the question of approval need not be decided as a

preliminary issue.

6] We find substance in this submission. It is clear that in a

given case, the question whether approval to the services of the

teacher has been wrongly refused or granted might itself be a

question that may arise for determination in an appeal. The present

case is one such example. The petitioner's services have been

terminated on the ground that the Education Department has refused

to grant approval to her services. In such a case, we have no doubt

that the question whether the petitioner has been wrongly refused

approval is a question that will arise for determination before the

School Tribunal. We are of the view that a School Tribunal, which

has the jurisdiction to decide whether the dismissal, removal or

otherwise termination of the services of a teacher by the management

is wrongful or not, has the power to decide whether reason for such

termination, i.e. whether the refusal of approval is right or wrong, as

an ancillary or incidental question. The want of an express

enumeration of powers does not exclude such incidental powers as

are reasonably necessary to accomplish the purpose of deciding

whether the dismissal or termination of services is wrongful or not.

We might notice that in relation to another aspect, this Court has held

that the School Tribunal is vested with the incidental power to decide

the question of seniority of a teacher while considering his appeal that

he has been wrongfully superseded. This Court observed vide

Umesh Balkrishna Vispute .vs. State of Maharashtra & others

reported in 2001(1) Mh.L.J. 486 as follows :-

"21. We, after having heard the parties at length

and after having considered the aforesaid judgments, are

of the considered view that finalisation of the seniority list

in terms of rule 12 of the Rules is not final and conclusive

and not binding on the tribunal and section 9(1) of the Act

has overriding effect as it opens with non obstante clause

and the dispute relating to seniority list can also be

considered by the Tribunal as an incidental question

while deciding the controversy in regards to the

supersession........."

Likewise, we find that there is no finality of any kind conferred on

such a decision by the Act by which the Education Officer grants or

refuses approval. In fact, approvals are not granted under any of

the provisions of the Act. It seems that approvals to appointments of

teachers are granted or withheld by way of a supervisory function

carried out by the Education Department to ensure compliance by the

school of the Rules and Regulations governing such school, vide

Section 3.2(5) of the Secondary Schools Code which reads as

follows:-

"3.2(5) : The education imparted in the school is

considered by the appropriate authority to be satisfactory

in all respects. All the members of the teaching staff are

suitable and possess the prescribed qualifications and

are sufficient in number and the school does not employ

any member notified as unsuitable for employment by the

Deputy Director or the Director, under Rule 77.9 and

Rule 77.11."

7] In the circumstances, we are not inclined to entertain this

petition. The petitioner may raise the question of the correctness of

the impugned order dated 11.4.2008 in the Appeal No. STC. 5/10

pending before the Presiding Officer, Additional School Tribunal,

Nagpur (Chandrapur).

8] With the above observations, the Writ Petition stands

disposed of. Rule stands discharged with no order as to costs.

                    JUDGE.                                                                 JUDGE.
     J.